The opinion gets that diagrams are good.
Here's the latest in a case we've been following.
A case that should end up in Property casebooks (it will almost certainly make an appearance in our William and Mary Eminent Domain and Property Rights course in the fall).
Dirt lawyers know the "ad coelum" doctrine (owner owns airspace, and down to Hades) has a lot of practical challenges in the modern world. The Supreme Court decided a while back in United States v. Causby, 328 U.S. 256 (1946) that no, it isn't violating the surface owner's property rights for aircraft to fly high up. In the modern world, the owner can't reasonably expect to be compensated for invasions into the coelum, except when the invasion is down fairly low, and likely to cause a problem on the surface. The doctrine has some continuing vitality, especially in that all-to-frequent question that dirt lawyers get: if my neighbor's tree overhangs my property line, can I trim the branches or pick the fruit? But how low does it go?
For more on that, check out the U.S. Court of Appeals for the Tenth Circuit's opinion in Iron Bar Holdings, LLC v. Cape, No. 23-8043 (Mar. 18, 2025), a case presenting a very interesting -- some might say metaphysical -- property issue.
The diagram above is from the opinion, and illustrates the dispute. The "checkerboard" below from the District Court's opinion shows the land ownership patterns in the relevant area of Wyoming. Hunters, who wanted to hunt on public BLM-managed land (blue) adjacent to Iron Bar's private property (red) needed a way to get to the public hunting grounds without trespassing on Iron Bar's private property. That meant no touching of the red squares.
Your mission: go from blue squares to blue squares
without touching any of the red squares
The hunters' journey is called "corner crossings" because, well, they are crossing the land at the corners of the boundaries. Here are the actual parcels, and some of the corner crossings at issue (again, from the District Court).
Of course, these lines on a map don't actually exist on the ground. The actual points of contact for the parcels "meet at an infinitely small point" that "like a point in mathematics, are without length or width." We did say this was going to be kind of metaphysical.
But the corners are marked and the hunters trying to traverse from one public parcel to another public parcel without trespassing into private property, could locate at least the approximate location of these infinitely small points. "[T]he three hunters were met with two steel posts, each with a 'No Trespassing' sign, that were connected together with a chain, a padlock, and some wire." A locked "gate" that doesn't prevent anyone from actually getting from here to the other side of that chain, but nonetheless represents the corners and the private nature of the adjoining parcels.
The post in the ground between the signs is the location of the corner. Other than what is depicted above, "there were no posts, fencing, or buildings within one-quarter of a mile from the corner."
The hunters could not squeeze between the signs and the chain to get from one BLM parcel to another. What to do? No one seems to be watching, so how about just walking around? That would entail physically trespassing on Iron Bar's private property, and these hunters were very conscientious.
Did they try the Twister thing? No, "one by one, each grabbed one of the steel posts and swung around it, planting their feet only on Section 14 (BLM) and section 24 (BLM), but passing through the airspace above Section 23 (Plaintiff [Iron Horse]) and/or Section 13 (Plaintiff)." In holding onto the steel posts and swinging around them to cross from Section 14 to Section 24, there is no evidence the Defendants caused any damage to Plaintiff's property." During other hunts in later years, the hunters wanted to avoid all this grabbing and swinging and "in an effort to not touch Plaintiff's steel posts when crossing ... they brought a steel A-frame ladder[.]" They propped up this and use it for crossing without touching Iron Bar's land, nor its posts.
Eventually, the private owner sued the hunters in civil trespass actions and the District Court ruled in the hunters' favor because there's a public right to access public property, and even though the private owners have a right to exclude from their own land, they don't have the right to erect barriers to the public accessing public land.
The Tenth Circuit started with Cedar Point, John Adams, property rights, and the right to exclude. This is a "core" property rights, and the court acknowledged that subject to aircraft flight, the surface owner does own the airspace. The court offers a hat tip to Causby, limiting an owner's property rights to the airspace the owner is able to occupy or use in connection with the land (even if the owner does not actually so use the airspace).
The court also noted that under Wyoming state law, this is likely an actionable civil trespass. Yes, very likely. Slip op. at 24. But "that does not end the inquiry[,]" because federal law may ok corner crossings on its own. The court concluded that the federal Unlawful Enclosures Act and interpreting caselaw "have overridden the state's civil trespass regime[.]" Id.
After going through the statute and several cases interpreting the Act, the court held:
We extract from these cases that the UIA proscribes the “exclusive use and occupancy of any part of the public lands” and further prohibits conduct that “prevent[s] or obstruct[s] free passage or transit over or through the public lands.” See §§ 1061, 1063. The controlling principle is that checkerboard landowners cannot maintain a barrier that has the effect of fully enclosing public lands and preventing complete access for a lawful purpose. Bergen, 848 F.2d at 1511–12. When a landowner denies checkerboard access, he imposes a proscribable nuisance under federal law, “notwithstanding such action may involve an entry upon the lands of a private individual.” Camfield, 167 U.S. at 525. At the same time, the government—and by extension its licensees (i.e., the public)—do not have an “implied easement to build a road” across private holdings to reach public lands. Leo Sheep, 440 U.S. at 669. Leo Sheep did not speak to, and is not controlling for, the type of limited airspace intrusion ratified by the district court.
Slip op, at 38.
So let's see if we get this. The owners here have a right to exclude corner-crossers. But the Act says that the public has a right to access public lands, which means any private owner that is getting in the way of that -- even where that owner does nothing affirmative to impede public access -- is creating a nuisance. Slip op. at 41 ("The UIA, in contrast, contemplates a limited physical intrusion necessary to abate a nuisance—inclosure of the public lands.").
So you have a right to exclude, but if you exercise that right, you are creating a nuisance. Is that right? Sorry not sorry.
Following up on that, the Tenth Circuit rejected the owner's argument that if thusly interpreted, the Act is a taking. "There is some force to that argument," the court began, but [and there's always a "but," isn't there?], "Bergen assessed a similar argument and rejected it." Slip op. at 46. "That is not to say more recent Supreme Court precedent may cast doubt on Bergen's logic. Cedar Point Nursery, for example[.]" Id.
But Bergen left open the possibility that an owner, if she can conceive of a way to maintain the right to exclude without also enclosing public lands ... have at it, owner. Id. at 47. In the end, this looks to us more like the court saying there's a balance that needs to be made between public access, and private rights. And in the court's view, the break goes to the public. We're not sure that's the right way to look at it, especially in light of Armstrong (a case that doesn't show up in the opinion), which says that which way the balance between public and private rights breaks isn't as important as who bears the cost when it breaks towards the public.
So here's a stupid idea: why not instead of trying to regulate and restrict the owner's right to exclude, the feds take it by eminent domain. We do that for the Rails to Trails Act, why not here?
We think there's the seeds of a great screenplay in here, in case your dirt lawyer gig isn't working out and you want to be in the movies.
Iron Bar Holdings, LLC v. Cape, No. 23-8043 (10th Cir. Mar. 18, 2025)